Over the last 150 days we have learned much about the power of the habitual in post-millennial, post-apartheid South Africa. We have heard it in the grumbling, cavilling, quarrelling and grousing about the logic (or lack of) of government decrees. We have also seen it in the defiance of logic among the many bourgeois folks who mistook their entitlement for rights, whether to go running, do yoga on the beach, surf, get takeaway coffees, or to purchase items subjected to restricted trade… We saw it in the contradictory messages relayed by official government channels, in the conflict between some experts advising government, between government officials and such experts, and in the ways in which opposition parties contradicted themselves as they opposed government proclamations.
Earlier this week a full bench of the Botswana High Court declared that various provisions of the Botswana Penal Code (which criminalised consensual sodomy in private) were unconstitutional and invalid. The judgment has potentially profound consequences for the protection of sexual minorities in Botswana and beyond. For the first time a Botswana court held that the constitution prohibited discrimination on the basis of sexual orientation. This opens the door for potential challenges to other pieces of legislation that discriminate against gays, lesbians and other sexual minorities.
Did Letsweletse Motshidiemang – a 24-year-old gay man studying at the University of Botswana – suspect that he would help to make legal (and queer) history in Botswana when he approached the Botswana High Court to have section 164(a) and 164(c) of the Botswana Penal Code declared unconstitutional and invalid? If he did not know it when he launched the challenge, he must know now that his case has resulted in a breath-taking victory for LGBT people in Botswana that may have wider impact.
Mr Motshidiemang challenged the constitutionality of sections of the Botswana Penal Code that criminalised “carnal intercourse” against “the order of nature”. These words were widely understood to mean that the code criminalised sodomy. The antiquated language used in section 164 of the Botswana Penal Code alerts us to the fact that this law that criminalised sodomy was a hangover of British colonial rule.
As the High Court explained, “with the advent of colonialism, the offence of sodomy was henceforth imported into the British colonies during the 17thand 20thcenturies”. This was done without consulting indigenous populations. In many parts of the African continent the British colonisers merely copied section 377 of the Indian Penal Code (which was declared unconstitutional in 2018) into the penal codes of “their” African colonies. This also happened in Botswana.
This history, meticulously recounted by the court, illustrates the clear link between the criminalisation of same-sex sexual conduct on the African continent and the colonisation of parts of the continent by the British. (In many West African countries that were colonised by the French, there is no criminal prohibition of same-sex acts. This is because the French Napoleonic Penal Code did not include such a prohibition.)
Mr Motshidiemang and his lawyers attacked the constitutionality of the impugned provisions of the Penal Code on various grounds. The court did not accept the (more technical) argument that section 164(a) and (c) of the code are void because it was too vague because the Botswana courts had previously interpreted these sections as prohibiting sexual intercourse in the form of anal sexual penetration.
As it turns out, this was not a bad thing as it meant the court could deal with the case by engaging with the substantive question of whether the provisions infringed on several constitutional rights in a manner not justified by the Botswana Constitution. Relying on substantive provisions also leave more scope to use these provisions in future cases challenging the constitutionality of legislation.
The High Court first found that the provisions infringed on the right to privacy guaranteed in section 3 of the Botswana Constitution. The Court interpreted the right to privacy expansively and stated that privacy was essential to who we are as human beings. It was more than a mere right to be left alone. It was also a right to personal autonomy; a right for everyone to make “crucial decisions regarding their well-being, without coercion, intimidation or interference, from any direction, be it government or otherwise”.
These fundamental personal choices included choices relating to intimate sexual conduct without unwarranted State interference. The state has no business, said the court, to intrude into matters of consensual intimacy, “nor can societal notions of heteronormativity regulate constitutional liberties based on sexual orientation”.
Having framed the right to privacy in such expansive terms, the High Court had no difficulty in finding that the impugned provisions infringed on the right to privacy because it prohibited the applicant (and other men who have sex with men) from expressing their sexuality in private with their preferred adult partners.
Second, the High Court also found that the provisions infringed on the right to liberty guaranteed in section 3 of the Botswana Constitution. Once again, the court gave an expansive interpretation of the right, and once again linked it to autonomy, holding that the right to liberty includes the right to choose a sexual partner – otherwise known as sexual autonomy. A society in which people are free to make their own choices about how they wish to live, is a society that respects and even celebrates diversity. Thus, the court held:
As a nation there is an ardent need to respect our diversity and plurality by being tolerant to minority views and opinions. We need not be too prescriptive and cajole people into becoming who and what they are not. Personal autonomy on matters of sexual preference and choice must therefore be respected. Any criminalisation of love or finding fulfilment in love dilutes compassion and tolerance.
While one could quibble with the idea that liberty merely requires “tolerance” from the dominant group in society – suggesting that some members of society are not considered fully equal and worthy of respect, although they should be “tolerated” – other parts of the quoted passage about the right of everyone to become who they are, hint at South Africa’s jurisprudence which have affirmed for everyone a right to be different. The South African Constitutional Court has held that such a right to be different may require a rejection of the very idea that heterosexuality is “normal” and same-sex love is not. What becomes normal in such a society is difference.
Third, the High Court held that the provisions infringed on the right to dignity, once again strongly focusing on the autonomy of individuals and the right to choose how one wished to live. Dignity, said the court, included the right of every individual to decide for him or herself how to make something valuable of his or her life. It followed that the ability to make choices about your sexual expression in the only way open to you goes to the core of your worth as a human being. Criminalising sodomy therefore violated an individuals’ inherent dignity and self-worth.
From a constitutional law perspective, the High Courts’ decision to expand the reach of the discrimination provision in the Botswana Constitution to include discrimination on the basis of sexual orientation, is the most important legal aspect of the judgment.
The court held that the prohibition against discrimination on the basis of sex in the Botswana Constitution should be read as including sexual orientation. The drafters of the Botswana Constitution must have known that over time society would recognise that other groups not listed in the Constitution also suffer from discrimination and the court should then protection to such groups.
In any case, the decision to read “sex” as including “sexual orientation is made easier because the Botswana Parliament had already recognised “sexual orientation” as a ground for discrimination when it passed the Employment Amendment Act in 2010. This amendment made it unlawful to terminate employment on the basis of sexual orientation.
This means that, in future, litigants who wished to challenge other forms of discrimination against gays and lesbians would be able to rely on this part of the judgment to argue that a specific law or action unconstitutionally discriminates against LGBT people. At this stage it is unclear how far the court would be prepared to go, but suddenly all laws that discriminate against LGBT people are open to possible challenge. This is potentially a huge legal development.
However, in order to convince the court that the sections of the Penal Code in fact discriminated against Mr Motshidiemang, there was another hurdle to overcome. Several years ago, the relevant provisions of the Penal Code were amended to make them “gender neutral” so the state argued that there was no discrimination in this case as the law prohibited anal sexual intercourse whether two men or a man and a woman was involved.
The High Court invoked section 15(1) of the Constitution which prohibits not only direct discrimination, but also discrimination “in effect”. In other words, even a “neutral law” could be discriminatory if its impact was more severe on a specific group.
As anal sexual intercourse is usually associated with gay men and as the applicant claimed that this was the only mode of sexual gratification and expression open to him as well as natural to him, the criminal provision “has substantial greater impact on the applicant as a homosexual, who engages only in anal sexual penetration, than it does on heterosexual men and women.” It was therefore discriminatory.
Finally, the High Court held that there was no justification for the infringement of these rights. In this case, the state provided no justification for infringing on the rights of LGBT people – except to make a general unsubstantiated and speculative claim that sodomy was against public morality and that the law was aimed to promote the public interest.
The court rejected these arguments, noting that it would not be sufficient for the state to show that the public supported the discriminatory legislation and that the state provided no evidence why it would be in the public interest to regulate the private sexual acts of consenting adults that cause no harm to anyone. On the other hand, the infringement of rights was serious, as the provisions perpetuated stigma and shame against homosexuals and rendered them outcasts. In effect the provisions were aimed at “policing what is just a variety of human sexuality” and the provisions therefore serve no useful public purpose.
This judgment is a meaningful and potentially even revolutionary victory for LGBT rights on our continent. It also suggests that I might be wise to temper my growing scepticism about the ability of courts to contribute to radical social change.BACK TO TOP